Open Courts Compendium

Author

I. Introduction: Access rights in the jurisdiction

A. The roots of access rights

In Louisiana, there is a constitutional right of access to judicial proceedings, both civil and criminal. Article 1, § 22 of the Louisiana Constitution states: “All courts shall be open.” SeeHuval v. State through Dep’t of Pub. Safety & Corr., 222 So.3d 665, 671 (La. 2017). As to criminal trials, article 1, § 16 of the Louisiana Constitution states: “Every person charged with a crime is presumed innocent until proven guilty and is entitled to a speedy, public, and impartial trial.” (Emphasis added.)

The Louisiana Supreme Court has commented in both criminal and civil cases on the “strong societal interest in public trials.” See State v. Birdsong, 422 So.2d 1135 (La. 1982) (criminal case); Copeland v. Copeland, 930 So.2d 940 (La. 2006) (civil case). See the relevant sections below on criminal and civil proceedings for more detail.

There is also a constitutional right of access to public documents. Article 12, § 3 of the Louisiana Constitution states: “No person shall be denied the right to . . . examine public documents, except in cases established by law.” This right is implemented by the Louisiana Public Records Act, La. R.S. 44:1 et seq.

Louisiana is a civil-law jurisdiction; courts typically do not discuss “common-law” rights.

There are Uniform Rules but also “local” rules for each of the five Circuit Courts of Appeal. Links to all may be found on the Louisiana Supreme Court’s website at: http://www.lasc.org/rules/Appellate.asp. Recent efforts to standardize the District Court Rules have created a confusing mix of mostly-generic uniform rules and numerous “appendices,” each of which lists one rule as it appears in each of the 40+ judicial districts. More useful for the practitioner, or the journalist, would be a document that would contain all rules for a single district. No such page exists on the Louisiana Supreme Court’s website. Rather, this link: http://www.lasc.org/rules/DistrictCourt.asp gives separate links to the Uniform Rules (“Rules in PDF Format”), to pages containing all appendices for each individual judicial district (“District by District Appendices”), and to pages containing each judicial district’s version of one appendix (“List of Appendices”).

The Louisiana Code of Civil Procedure and the Louisiana Code of Criminal Procedure provide pre-trial and trial procedures for the District Courts.

The constitutional right of access to public documents (La. Const. art. 12, § 3) is implemented by the Louisiana Public Records Act, La, R.S. 44:1 et seq. Under the Public Records Act, “any person” may make a public records request. La. R.S. 44:32. “Any person who has been denied the right to inspect or copy a record” may “institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief.” La. R.S. 44:35.

Courts are covered by the Public Records Act. See La. R.S. 44:1(A)(1), defining “public body” as including any branch . . . of state . . . government,” and article 2, § 1 of the Louisiana Constitution: “The powers of government of the state are divided into three separate branches. legislative, executive, and judicial.”

B. Overcoming a presumption of openness

The Louisiana Supreme Court ordered a motion to suppress hearing closed on the defendant’s motion, over a vigorous dissent by then-Justice Dennis (who now serves on the United States Fifth Circuit Court of Appeals), in State v. Birdsong, 422 So.2d 1135 (La. 1982). The Court held that, to justify closing a pre-trial hearing, the defendant “should only have to show a reasonable likelihood of substantial prejudice to his right to a fair trial.” Id. at 1136 (emphasis in original). Subsequent to Birdsong, the United States Supreme Court in Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1 (1986), held that a preliminary hearing may be closed to protect fair trial rights only “if specific findings are made demonstrating that, first, there is a substantial probability that the defendant’s right to a fair trial will be prejudiced. . . .” 478 U.S. at 14 (emphasis added).

Apparently trying to finesse the gap between Press-Enterprise II and Birdsong, the Louisiana Second Circuit Court of Appeal has stated that a defendant seeking to close a pre-trial hearing must make a showing that: “(1) His right to a fair trial will likely be prejudiced by conducting the hearing publicly; (2) Alternatives to closure cannot adequately protect his fair trial right; and (3) Closure will probably be effective in protecting against the perceived danger.” State v. Eaton, 483 So.2d 651 (La.App. 1986) (emphasis added).

C. Procedural prerequisites to closure

II. Procedure for asserting right of access to proceedings and records

A. Media standing to challenge closure

Standing to challenge closure orders is not usually an issue in Louisiana. The news media typically files a motion to intervene. The Courts have given full consideration to motions by the news media for access even without granting intervention, however, and have allowed intervention in criminal cases even though there is no express authority to do so.

Thus, in Copeland v. Copeland, 930 So.2d 940 (La. 2006), the District Court issued an order sealing the entire record of a divorce proceeding. The District Court denied a newspaper’s motion to intervene to challenge the sealing order. The Court of Appeal denied the newspaper’s writ application; the Supreme Court granted writs and vacated and remanded. On remand, the District Court then issued another less-extensive sealing order; the Court of Appeal denied a new writ application; and the Supreme Court again granted writs and ordered almost the entire record opened. In sum, the newspaper won almost total relief, and the Louisiana Supreme Court issued two opinions, even though the motion to intervene was never granted explicitly.

In Chicago Tribune Co. v. Mauffray, 996 So.2d 1273, 1279 (La. App. 2008), the Court of Appeal held that the news media had standing to challenge closure of courtroom proceedings and request access to records of juvenile adjudication proceedings even though the “News Media may not be acting as ‘intervenors’ in the strictest sense.” The Court stated: “The media is often in the best position to champion the important interests that both the media and the public share in the rights and freedoms discussed above. In order to give meaning to these rights and freedoms, representatives of the press and general public must generally be given an opportunity to be heard on the question of their exclusion.”

In State v. Walden Book Co., 386 So.2d 342, 343 n. 1 (La. 1980), an obscenity prosecution against Penthouse magazine, the Supreme Court allowed the magazine publisher to intervene, although noting that the state was correct in arguing “the absence of statutory provisions permitting intervention in a criminal case.”

There is also a constitutional right of access to public documents. Article 12, § 3 of the Louisiana Constitution states: “No person shall be denied the right to . . . examine public documents, except in cases established by law.” This right is implemented by the Louisiana Public Records Act, La. R.S. 44:1 et seq. Under the Public Records Act, “any person” may make a public records request. La. R.S. 44:32. “Any person who has been denied the right to inspect or copy a record” may “institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief.” La. R.S. 44:35.

Courts are covered by the Public Records Act. See La. R.S. 44:1(A)(1), defining “public body” as including “any branch . . . of state . . . government,” and article 2, § 1 of the Louisiana Constitution: “The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.”

B. Procedure for requesting access in criminal cases

The news media typically files a motion to intervene in the court where the issue is pending; if the motion is denied, a writ application (equivalent to an interlocutory appeal) may immediately be brought to the Court of Appeal, and, if denied there, to the Supreme Court. Although review by the appellate courts is discretionary, unlike in the federal system the writ process is an integral part of Louisiana appellate practice. For instance, in State v. Widenhouse, 556 So.2d 187 (La. App. 1990), the District Court allowed the news media to intervene and granted partial relief against a sealing order. The news media filed a writ application and the Court of Appeal reversed the sealing order in its entirety, granting full relief.

The authority for writ practice is found in article 5, § 2 of the Louisiana Constitution: “A judge may issue . . . all other needful writs, orders, and process in aid of the jurisdiction of his court”; article 5, § 5(A) of the Constitution: “The supreme court has general supervisory jurisdiction over all other courts”; article 5, § 10(A) of the Constitution: “a court of appeal . . . has supervisory jurisdiction over cases which arise within its circuit”; and article 2201 of the Louisiana Code of Civil Procedure: “Supervisory writs may be applied for and granted in accordance with the constitution and rules of the supreme court and other courts exercising appellate jurisdiction.”

When submitting a writ application to the Supreme Court, particular attention must be paid to Supreme Court Rule X, § 1: “Writ Grant Considerations.” The Rule lists five “considerations” which, though “neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons that will be considered” in deciding whether to grant a writ application. The five considerations are: (1) conflicting decisions; (2) significant unresolved issues of law; (3) overruling or modification of controlling precedents; (4) erroneous interpretation or application of constitution or laws; and (5) gross departure from proper judicial proceedings. A writ application “shall address, in concise fashion why the case is appropriate for review under the considerations stated,” and “one or more of” the five considerations “must ordinarily be present in order for an application to be granted.”

The Courts have given full consideration to motions by the news media for access even without granting intervention, however, and have allowed intervention in criminal cases even though there is no express authority to do so.

Thus, in Copeland v. Copeland, 930 So.2d 940 (La. 2006), the District Court issued an order sealing the entire record of a divorce proceeding. The District Court denied a newspaper’s motion to intervene to challenge the sealing order. The Court of Appeal denied the newspaper’s writ application; the Supreme Court granted writs and vacated and remanded. On remand, the District Court then issued another less-extensive sealing order; the Court of Appeal denied a new writ application; and the Supreme Court again granted writs and ordered almost the entire record opened. In sum, the newspaper won almost total relief, and the Louisiana Supreme Court issued two opinions, even though the motion to intervene was never granted explicitly.

In Chicago Tribune Co. v. Mauffray, 996 So.2d 1273, 1279 (La. App. 2008), the Court of Appeal held that the news media had standing to challenge closure of courtroom proceedings and request access to records of juvenile adjudication proceedings even though the “News Media may not be acting as ‘intervenors’ in the strictest sense.” The Court stated: “The media is often in the best position to champion the important interests that both the media and the public share in the rights and freedoms discussed above. In order to give meaning to these rights and freedoms, representatives of the press and general public must generally be given an opportunity to be heard on the question of their exclusion.”

In State v. Walden Book Co., 386 So.2d 342, 343 n. 1 (La. 1980), an obscenity prosecution against Penthouse magazine, the Supreme Court allowed the magazine publisher to intervene, although noting that the state was correct in arguing “the absence of statutory provisions permitting intervention in a criminal case.”

As to access to records, the Louisiana Public Records Act, La. R.S. 44:1 et seq., allows “any person” to make a public records request. La. R.S. 44:32. “Any person who has been denied the right to inspect or copy a record” may “institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief.” La. R.S. 44:35.

Courts are covered by the Public Records Act. See La. R.S. 44:1(A)(1), defining “public body” as including “any branch . . . of state . . . government,” and article 2, § 1 of the Louisiana Constitution: “The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.”

When proceeding under the Public Records Act, the better practice is to comply strictly with the terms of the Act. An individual person should request the record and should be the plaintiff if suit is filed. Compare Ferguson v. Stephens, 623 So.2d 711 (La. App. 1993) (granting relief including attorneys’ fees to reporter who submitted request and was the named plaintiff) and Capital City Press v. E. Baton Rouge Par. Metro. Council, 696 So.2d 562 (La. 1997) (granting relief including attorneys’ fees where reporter submitted request and both reporter and newspaper were the named plaintiffs), withVourvoulias v. Movassaghi, 906 So.2d 461 (La. App. 2005) (denying relief because paralegal who had signed public records request, not general counsel who was plaintiff, had the right to sue over denial of request). Still, cases have proceeded to judgment with the news media entity as the plaintiff. See, e.g., Gannett River States Publ’g v. Hussey, 557 So.2d 1154 (La. App. 1990) (reporter submitted public records request while newspaper was plaintiff).

C. Procedure for requesting access in civil matters

The news media typically file a motion to intervene in the court where the issue is pending.

Intervention is governed by articles 1091–1094 of the Louisiana Code of Civil Procedure. Article 1091 states: “A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by: (1) Joining with plaintiff in demanding the same or similar relief against the defendant; (2) Uniting with defendant in resisting the plaintiff’s demand; or (3) Opposing both plaintiff and defendant.”

If the motion is denied, a writ application (equivalent to an interlocutory appeal) may immediately be brought to the Court of Appeal, and, if denied there, to the Supreme Court. Although review by the appellate courts is discretionary, unlike in the federal system, the writ process is an integral part of Louisiana appellate practice.

The authority for writ practice is found in article 5, § 2 of the Louisiana Constitution: “A judge may issue . . . all other needful writs, orders, and process in aid of the jurisdiction of his court”; article 5, § 5(A) of the Constitution: “The supreme court has general supervisory jurisdiction over all other courts”; article 5, § 10(A) of the Constitution: “a court of appeal . . . has supervisory jurisdiction over cases which arise within its circuit”; and article 2201 of the Louisiana Code of Civil Procedure: “Supervisory writs may be applied for and granted in accordance with the constitution and rules of the supreme court and other courts exercising appellate jurisdiction.”

When submitting a writ application to the Supreme Court, particular attention must be paid to Supreme Court Rule X, § 1: “Writ Grant Considerations.” The Rule lists five “considerations” which, though “neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons that will be considered” in deciding whether to grant a writ application. The five considerations are: (1) conflicting decisions; (2) significant unresolved issues of law; (3) overruling or modification of controlling precedents; (4) erroneous interpretation or application of constitution or laws; and (5) gross departure from proper judicial proceedings. A writ application “shall address, in concise fashion why the case is appropriate for review under the considerations stated,” and “one or more of” the five considerations “must ordinarily be present in order for an application to be granted.”

The Courts have given full consideration to motions by the news media for access even without granting intervention, however.

Thus, in Copeland v. Copeland, 930 So.2d 940 (La. 2006), the District Court issued an order sealing the entire record of a divorce proceeding. The District Court denied a newspaper’s motion to intervene to challenge the sealing order. The Court of Appeal denied the newspaper’s writ application; the Supreme Court granted writs and vacated and remanded. On remand, the District Court then issued another less-extensive sealing order; the Court of Appeal denied a new writ application; and the Supreme Court again granted writs and ordered almost the entire record opened. In sum, the newspaper won almost total relief, and the Louisiana Supreme Court issued two opinions, even though the motion to intervene was never granted explicitly.

In Chicago Tribune Co. v. Mauffray, 996 So.2d 1273, 1279 (La. App. 2008) the Court of Appeal held that the news media had standing to challenge closure of courtroom proceedings and request access to records of juvenile adjudication proceedings even though the “News Media may not be acting as ‘intervenors’ in the strictest sense.” The Court stated: “The media is often in the best position to champion the important interests that both the media and the public share in the rights and freedoms discussed above. In order to give meaning to these rights and freedoms, representatives of the press and general public must generally be given an opportunity to be heard on the question of their exclusion.”

As to access to records, the Louisiana Public Records Act, La. R.S. 44:1 et seq., allows “any person” to make a public records request. La. R.S. 44:32. “Any person who has been denied the right to inspect or copy a record” may “institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief.” La. R.S. 44:35.

Courts are covered by the Public Records Act. See La. R.S. 44:1(A)(1), defining “public body” as including “any branch . . . of state . . . government,” and article 2, § 1 of the Louisiana Constitution: “The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.”

When proceeding under the Public Records Act, the better practice is to comply strictly with the terms of the Act. An individual person should request the record and should be the plaintiff if suit is filed. CompareFerguson v. Stephens, 623 So.2d 711 (La. App. 1993) (granting relief including attorneys’ fees to reporter who submitted request and was the named plaintiff) and Capital City Press v. E. Baton Rouge Par. Metro. Council, 696 So.2d 562 (La. 1997) (granting relief including attorneys’ fees where reporter submitted request and both reporter and newspaper were the named plaintiffs), with Vourvoulias v. Movassaghi, 906 So.2d 461 (La.App. 2005) (denying relief because paralegal who had signed public records request, not general counsel who was plaintiff, had the right to sue over denial of request). Still, cases have proceeded to judgment with the news media entity as the plaintiff. See, e.g., Gannett River States Publ’g v. Hussey, 557 So.2d 1154 (La. App. 1990) (reporter submitted public records request while newspaper was plaintiff).

D. Obtaining review of initial court decisions

If either a motion to intervene or substantive relief is denied, a writ application (equivalent to an interlocutory appeal) may immediately be brought to the Court of Appeal, and, if denied there, to the Supreme Court. Although review by the appellate courts is discretionary, unlike in the federal system, the writ process is an integral part of Louisiana appellate practice.

For instance, in Copeland v. Copeland, 930 So.2d 940 (La. 2006), the District Court, on joint motion of the parties, issued an order sealing the entire record of the divorce proceedings of a wealthy and famous local businessman. The District Court denied a newspaper’s motion to intervene to challenge the sealing order. The Court of Appeal denied the newspaper’s writ application. The Supreme Court then granted a writ, found “the trial court’s blanket order sealing the entire record in this case to be overbroad,” and vacated and remanded. The Supreme Court required a “specific showing that [the parties’] privacy interest outweigh the public’s constitutional right of access to the record” and further required that orders sealing records be “narrowly tailored to cause the least interference with the right of public access.” On remand, the District Court ordered almost all of the documents in the record sealed. The Court of Appeal denied a new writ application, and the Supreme Court again granted a writ. This time, the Supreme Court ordered “the entire record unsealed, with redaction of the following information: (1) the name of the children’s school; and (2) the location of the family home.” Copeland v. Copeland, 966 So.2d 1040 (La. 2007). In sum, the newspaper won almost total relief, and the Louisiana Supreme Court issued two opinions, even though the motion to intervene was never granted and the case was never heard on appeal (rather than on writ).

The authority for writ practice is found in article 5, § 2 of the Louisiana Constitution: “A judge may issue . . . all other needful writs, orders, and process in aid of the jurisdiction of his court”; article 5, § 5(A) of the Constitution: “The supreme court has general supervisory jurisdiction over all other courts”; article 5, § 10(A) of the Constitution: “a court of appeal . . . has supervisory jurisdiction over cases which arise within its circuit”; and article 2201 of the Louisiana Code of Civil Procedure: “Supervisory writs may be applied for and granted in accordance with the constitution and rules of the supreme court and other courts exercising appellate jurisdiction.”

The Rule lists five “considerations” which, though “neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons that will be considered” in deciding whether to grant a writ application. The five considerations are: (1) conflicting decisions; (2) significant unresolved issues of law; (3) overruling or modification of controlling precedents; (4) erroneous interpretation or application of constitution or laws; and (5) gross departure from proper judicial proceedings. A writ application “shall address, in concise fashion why the case is appropriate for review under the considerations stated,” and “one or more of” the five considerations “must ordinarily be present in order for an application to be granted.”

B. Pretrial proceedings

The Louisiana Constitution provides a right of access to judicial proceedings in criminal cases. Article 1, § 22 states: “All courts shall be open.” Article 1, § 16 states: “Every person charged with a crime is presumed innocent until proven guilty and is entitled to a speedy, public, and impartial trial.” (Emphasis added.) The Louisiana Supreme Court has commented on the “strong societal interest in public trials.” State v. Birdsong, 422 So.2d 1135 (La. 1982).

“The public and press have an enforceable qualified constitutional right of access to attend criminal trials and pretrial proceedings.” State v. Widenhouse, 556 So.2d 187, 189–90 (La. App. 1990); State v. Fletcher, 537 So.2d 805 (La.App. 1989); State v. Eaton, 483 So.2d 651 (La. App. 1986). The presumption of openness “may be overcome only by an ‘overriding interest’ such as the accused’s right to a fair trial.” Widenhouse, 556 So.2d at 189–90.

Even if access may be denied, “the public must be given an opportunity to be heard before closure is ordered.” State v. Womack, 551 So.2d 855, 858 (La. App. 1989).

The Louisiana Supreme Court ordered a motion to suppress hearing closed on the defendant’s motion, over a vigorous dissent by then-Justice Dennis (who now serves on the United States Fifth Circuit Court of Appeals), in State v. Birdsong, 422 So.2d 1135 (La. 1982). The Court held that, to justify closing a pre-trial hearing, the defendant “should only have to show a reasonable likelihood of substantial prejudice to his right to a fair trial.” Id. at 1136 (emphasis in original). Subsequent to Birdsong, the United States Supreme Court in Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1 (1986), held that a preliminary hearing may be closed to protect fair trial rights only “if specific findings are made demonstrating that, first, there is a substantial probability that the defendant’s right to a fair trial will be prejudiced. . . .” 478 U.S. at 14 (emphasis added).

Apparently trying to finesse the gap between Press-Enterprise II and Birdsong, the Louisiana Second Circuit Court of Appeal has stated that a defendant seeking to close a pre-trial hearing must make a showing that: “(1) His right to a fair trial will likely be prejudiced by conducting the hearing publicly; (2) Alternatives to closure cannot adequately protect his fair trial right; and (3) Closure will probably be effective in protecting against the perceived danger.” State v. Eaton, 483 So.2d 651 (La. App. 1986) (emphasis added).

C. Criminal trials

The Louisiana Constitution also provides a right of access to judicial proceedings in criminal cases. Article 1, § 22 states: “All courts shall be open.” Article 1, § 16 states: “Every person charged with a crime is presumed innocent until proven guilty and is entitled to a speedy, public, and impartial trial.” (Emphasis added.) The Louisiana Supreme Court has commented on the “strong societal interest in public trials.” State v. Birdsong, 422 So.2d 1135 (La. 1982).

“The public and press have an enforceable qualified constitutional right of access to attend criminal trials and pretrial proceedings.” State v. Widenhouse, 556 So.2d 187, 189–90 (La. App. 1990); State v. Fletcher, 537 So.2d 805 (La. App. 1989); State v. Eaton, 483 So.2d 651 (La. App. 1986). The presumption of openness “may be overcome only by an ‘overriding interest’ such as the accused’s right to a fair trial.” Widenhouse, 556 So.2d at 189–90.

Even if access may be denied, “the public must be given an opportunity to be heard before closure is ordered.” State v. Womack, 551 So.2d 855, 858 (La. App. 1989).

There should be no different standards for access to trial than for access to pre-trial hearings. See the “Pretrial Proceedings” section above.

E. Appellate proceedings

The Louisiana Constitution’s Open Courts provision applies to the appellate courts. Article 1, § 22 states: “All courts shall be open.” There should be no different standards for access to appellate court hearings trial than for access to district court hearings. See the “Pretrial Proceedings” section above. The authors are unaware of any instances of denial of access to appellate arguments.

Canon 3 of the Canons of Judicial Conduct states that appellate courts “may permit broadcasting, televising, recording, and taking photographs of public judicial proceedings in the courtrooms of appellate courts.” The Appendix to Canon 3 provides extensive “Guidelines for Extended Media Coverage of Proceedings in Appellate Courtrooms,” which are discussed at greater length in the “Cameras and Other Technology in the Courtroom” section below.

IV. Access to criminal court records

A. In general

There is a constitutional right of access to public documents. Article 12, § 3 of the Louisiana Constitution states: “No person shall be denied the right to . . . examine public documents, except in cases established by law.” This right is implemented by the Louisiana Public Records Act, La. R.S. 44:1 et seq. Under the Public Records Act, “any person” may make a public records request. La. R.S. 44:32. “Any person who has been denied the right to inspect or copy a record” may “institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief.” La. R.S. 44:35.

Courts are covered by the Public Records Act. See La. R.S. 44:1(A)(1), defining “public body” as including “any branch . . . of state . . . government,” and article 2, § 1 of the Louisiana Constitution: “The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.”

Typically, court records in criminal cases, whether in the District Courts or on appeal, are obtained simply by going to the clerk’s office (or judge’s chambers) and filling out a form requesting a record.

B. Arrest records

“The records of the arrest of a person” are exempt from disclosure under the Public Records Act “until a final judgment of conviction or the acceptance of a plea of guilty by a court of competent jurisdiction.” La. R.S. 44:3(A)(4)(a). Furthermore, pursuant to La. R.S. 44:3(A)(1), when records in the possession or control of specified “prosecutive, investigative, and law enforcement agencies” pertain “to pending criminal litigation or any criminal litigation which can be reasonably anticipated,” they are exempt from disclosure under the Public Records Act.

The “initial report of the officer or officers investigating a complaint,” however, is a public record. That report must contain: “(i) a narrative description of the alleged offense, including appropriate details thereof as determined by the law enforcement agency; (ii) the name and identification of each person charged with or arrested for the alleged offense; (iii) the time and date of the alleged offense; (iv) the location of the alleged offense; (v) the property involved; (vi) the vehicles involved; and (vii) the names of investigating officers.” La. R.S. 44:3(A)(4).

Arrest records may be expunged, however, in some circumstances. See La. Code Cr. P. arts. 971-996.

Electronic access to records varies from judicial district to judicial district. Some courts, typically in rural areas, do not even have websites. Clerk’s offices in urban areas, such as those in Shreveport, Baton Rouge, Covington and Gretna, do have websites with access to court records. Typically, minimal or no information is available for free, and full access, sometimes including images of documents, is available only with a paid subscription.

For New Orleans, the “Inmate Query” page of the Criminal Sheriff’s website provides access to booking information, including mugshots, for persons arrested and in custody in Orleans Parish:

Some courts, typically in rural areas, do not even have websites. Clerk’s offices in urban areas, such as those in Shreveport, Baton Rouge, Covington and Gretna, do have websites with access to court records. Typically, minimal or no information is available for free, and full access, sometimes including images of documents, is available only with a paid subscription.

For New Orleans, the “Docket Master” page of the Criminal Sheriff’s website provides access to criminal court dockets in Orleans Parish:

D. Warrants, wiretaps and related materials

Such records, if possessed by the Clerk of Court, should be accessible through a Public Records request.

When records in the possession or control of specified “prosecutive, investigative, and law enforcement agencies” pertain “to pending criminal litigation or any criminal litigation which can be reasonably anticipated,” they are exempt from disclosure under the Public Records Act. See La. R.S. 44:3.

E. Discovery materials

Such records, if possessed by the Clerk of Court, should be accessible through a Public Records request. However, if such records are in the possession or control of specified “prosecutive, investigative, and law enforcement agencies” and pertain “to pending criminal litigation or any criminal litigation which can be reasonably anticipated,” they are exempt from disclosure under the Public Records Act. See La. R.S. 44:3.

Autopsy reports are public records. See La. R.S. 33:1563(K)(1) (“the coroner is required to make available for public inspection and copying the autopsy report”). Photographs or video in autopsy reports, however, is confidential. See La. R.S. 44:19. Furthermore, autopsy reports, in some circumstances, may be subject to the “criminal litigation” public records exception of La. R.S. 44:3.

F. Pretrial motions and records

The Louisiana Constitution provides a right of access to judicial proceedings in criminal cases. Article 1, § 22 states: “All courts shall be open.” Article 1, § 16 states: “Every person charged with a crime is presumed innocent until proven guilty and is entitled to a speedy, public, and impartial trial.” (Emphasis added.) The Louisiana Supreme Court has commented on the “strong societal interest in public trials.” State v. Birdsong, 422 So.2d 1135 (La. 1982).

There is also a constitutional right of access to public documents. Article 12, § 3 of the Louisiana Constitution states: “No person shall be denied the right to . . . examine public documents, except in cases established by law.” This right is implemented by the Louisiana Public Records Act, La. R.S. 44:1 et seq. Under the Public Records Act, “any person” may make a public records request. La. R.S. 44:32. “Any person who has been denied the right to inspect or copy a record” may “institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief.” La. R.S. 44:35.

Courts are covered by the Public Records Act. See La. R.S. 44:1(A)(1), defining “public body” as including “any branch . . . of state . . . government,” and article 2, § 1 of the Louisiana Constitution: “The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.”

Typically, such records are obtained simply by going to the clerk’s office (or the judge’s chambers) and asking for the record.

“The public and press have an enforceable qualified constitutional right of access . . . to documents filed in connection with the pretrial motions in criminal proceedings. . . . There is a presumption of openness which may be overcome only by an ‘overriding interest’ such as the accused’s right to a fair trial. . . . In order to effect closure or sealing of the record in a criminal proceeding, the moving party must show and the trial court must specifically find that there is a reasonable probability that (1) the defendant’s right to a fair trial will be prejudiced by publicity; (2) closure would prevent that prejudice; and (3) reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights. It is essential that the trial court support any decision to close with specific reasons and findings on the record in order to facilitate appellate review. Broad and general findings by the trial court are not sufficient to justify closure. The First Amendment Right of Access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of the right to a fair trial.” State v. Widenhouse, 556 So.2d 187, 189–90 (La. App. 1990); State v. Lee, 787 So.2d 1020, 1038 (La. App. 2001).

Where closure of preliminary hearing was improper, denial of access to transcript of hearing was also improper. State v. Fletcher, 537 So.2d 805 (La. App. 1989).

G. Trial records

There should be no different standards for access to trial records trial than for access to pre-trial records. See the “Pretrial motions and records” section above. Typically, such records are obtained simply by going to the clerk’s office (or the judge’s chambers) and asking for the record.

H. Post-trial records

There should be no different standards for access to post-trial records trial than for access to trial and pre-trial records. See the “Pretrial motions and records” section above. Typically, such records are obtained simply by going to the clerk’s office (or the judge’s chambers) and asking for the record.

I. Appellate records

There should be no different standards for access to appellate records trial than for access to trial and pre-trial records. See the “Pretrial motions and records” section above. Typically, such records are obtained simply by going to the clerk’s office and asking for the record.

Supreme Court Rule V, § 5, addresses sealed documents: “When a Motion to Seal is filed, the motion and the documents, subject of motion, will be filed under seal and will remain under seal until the court takes action on the motion. If the motion is granted, the order will become public and the motion and documents will remain under seal. If the motion is denied, the motion and documents will be available to the public unless the court order allows the filing party to retrieve the motion and documents. Motions and documents filed under seal will only be viewable by authorized court personnel unless otherwise indicated in the order to seal.”

J. Other criminal court records issues

Electronic access to records varies from judicial district to judicial district. This page on the Louisiana Supreme Court’s website provides addresses and telephone numbers for all clerks of court as well as links to those clerk’s offices that have websites: http://www.lasc.org/links.asp

Some courts, typically in rural areas, do not even have websites. Clerk’s offices in urban areas, such as those in Shreveport, Baton Rouge, Covington and Gretna, do have websites with access to court records. Typically, minimal or no information is available for free, and full access, sometimes including images of documents, is available only with a paid subscription.

For New Orleans, the “Inmate Query” page of the Criminal Sheriff’s website provides access to booking information, including mugshots, for persons arrested and in custody in Orleans Parish:

Administrative records of courts are subject to the Public Records Act. See Henderson v. Bigelow, 982 So.2d 941, 947 (La. App. 2008) (records “relative to the expenditure and disbursement of public monies from the” judicial expense funds of courts are public records).

Persons inspecting public records are allowed to use hand-held scanners to make copies.

First Commerce Title Co., Inc. v. Martin, 887 So.2d 716 (La. App. 2004). Because of the loss of revenue from providing copies of records, there is considerable resistance to the use of hand-held scanners.

The Louisiana Supreme Court explicitly recognized this right of access in Plaquemines Parish Commission Council v. Delta Development Co., 472 So.2d 560, 566 (La. 1985). A newspaper intervened seeking access in a civil suit by the Parish against its former elected officials over millions of dollars of allegedly misappropriated mineral royalties. The Court stated: “The freedom of the press to report matters of public interest, and especially trial proceedings, is so great that it outweighs almost any governmental restraints.”

The Louisiana Supreme Court explicitly recognized this right of access in Plaquemines Parish Commission Council v. Delta Development Co., 472 So.2d 560, 566 (La. 1985). A newspaper intervened seeking access in a civil suit by the Parish against its former elected officials over millions of dollars of allegedly misappropriated mineral royalties. “The freedom of the press to report matters of public interest, and especially trial proceedings, is so great that it outweighs almost any governmental restraints.”

The Louisiana Supreme Court explicitly recognized this right of access in Plaquemines Parish Commission Council v. Delta Development Co., 472 So.2d 560, 566 (La. 1985). A newspaper intervened seeking access in a civil suit by the Parish against its former elected officials over millions of dollars of allegedly misappropriated mineral royalties. “The freedom of the press to report matters of public interest, and especially trial proceedings, is so great that it outweighs almost any governmental restraints.”

E. Appellate proceedings

VI. Access to civil records

There is a constitutional right of access to public documents. Article 12, § 3 of the Louisiana Constitution states: “No person shall be denied the right to . . . examine public documents, except in cases established by law.” This right is implemented by the Louisiana Public Records Act, La. R.S. 44:1 et seq. Under the Public Records Act, “any person” may make a public records request. La. R.S. 44:32. “Any person who has been denied the right to inspect or copy a record” may “institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief.” La. R.S. 44:35.

Courts are covered by the Public Records Act. See La. R.S. 44:1(A)(1), defining “public body” as including “any branch . . . of state . . . government,” and article 2, § 1 of the Louisiana Constitution: “The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.”

In addition to the Public Records Act applying to civil court records, article 251 of the Code of Civil Procedure states: “The clerk of court is the legal custodian of all of its records. . . . Except as otherwise provided by law, he shall permit any person to examine, copy, photograph, or make a memorandum of any of these records at any time during which the clerk’s office is required by law to be open.”

In Keko v. Lobrano, 497 So.2d 353 (La. App. 1986), the Court of Appeal held that, in light of the Public Records Act and article 251, “there is no power in the trial court to order an entire civil case record sealed from public inspection.”

Typically, court records in civil cases, whether in the District Courts or on appeal, are obtained simply by going to the clerk’s office and filling out a form requesting a record.

A. In general

There is a constitutional right of access to public documents. Article 12, § 3 of the Louisiana Constitution states: “No person shall be denied the right to . . . examine public documents, except in cases established by law.” This right is implemented by the Louisiana Public Records Act, La. R.S. 44:1 et seq. Under the Public Records Act, “any person” may make a public records request. La. R.S. 44:32. “Any person who has been denied the right to inspect or copy a record” may “institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief.” La. R.S. 44:35.

Courts are covered by the Public Records Act. See La. R.S. 44:1(A)(1), defining “public body” as including “any branch . . . of state . . . government,” and article 2, § 1 of the Louisiana Constitution: “The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.”

In addition to the Public Records Act applying to civil court records, article 251 of the Code of Civil Procedure states: “The clerk of court is the legal custodian of all of its records. . . . Except as otherwise provided by law, he shall permit any person to examine, copy, photograph, or make a memorandum of any of these records at any time during which the clerk’s office is required by law to be open.”

In Keko v. Lobrano, 497 So.2d 353 (La. App. 1986), the Court of Appeal held that, in light of the Public Records Act and article 251, “there is no power in the trial court to order an entire civil case record sealed from public inspection.”

Typically, court records in civil cases, whether in the District Courts or on appeal, are obtained simply by going to the clerk’s office and filling out a form requesting a record.

In Copeland v. Copeland, 930 So.2d 940 (La. 2006), the District Court, on joint motion of the parties, issued an order sealing the entire record of the divorce proceedings of a wealthy and famous local businessman. On a writ application by a newspaper, the Supreme Court found “the trial court’s blanket order sealing the entire record in this case to be overbroad,” and vacated and remanded. The Supreme Court required a “specific showing that [the parties’] privacy interest outweigh the public’s constitutional right of access to the record” and further required that orders sealing records be “narrowly tailored to cause the least interference with the right of public access.” On remand, the District Court ordered almost all of the documents in the record sealed. The Supreme Court again granted a writ and ordered “the entire record unsealed, with redaction of the following information: (1) the name of the children’s school; and (2) the location of the family home.” Copeland v. Copeland, 966 So.2d 1040 (La. 2007).

B. Dockets

Such records should be accessible through a Public Records request, or simply by going to the clerk’s office (or the judge’s chambers) and requesting the record.

This page on the Louisiana Supreme Court’s website provides addresses and telephone numbers for all clerks of court as well as links to those clerk’s offices that have websites: http://www.lasc.org/links.asp

Some courts, typically in rural areas, do not even have websites. Clerk’s offices in urban areas, such as those in Shreveport, Baton Rouge, Covington and Gretna, do have websites with access to court records. Typically, minimal or no information is available for free, and full access, sometimes including images of documents, is available only with a paid subscription.

C. Discovery materials

The Louisiana Supreme Court explicitly recognized the right of access to discovery materials in the court record in Plaquemines Par. Comm’n Council v. Delta Dev. Co., 472 So.2d 560, 566 (La. 1985). A newspaper intervened seeking access to discovery materials in the record of a civil suit brought by the Parish government against its former elected officials over millions of dollars of allegedly misappropriated mineral royalties. The Court stated: “The freedom of the press to report matters of public interest, and especially trial proceedings, is so great that it outweighs almost any governmental restraints.”

D. Pre-trial motions and records

The Louisiana Constitution provides a right of access to judicial proceedings in civil cases. Article 1, § 22 states: “All courts shall be open.” The Louisiana Supreme Court has commented on the “strong societal interest in public trials.” State v. Birdsong, 422 So.2d 1135 (La. 1982).

There is also a constitutional right of access to public documents. Article 12, § 3 of the Louisiana Constitution states: “No person shall be denied the right to . . . examine public documents, except in cases established by law.” This right is implemented by the Louisiana Public Records Act, La. R.S. 44:1 et seq. Under the Public Records Act, “any person” may make a public records request. La. R.S. 44:32. “Any person who has been denied the right to inspect or copy a record” may “institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief.” La. R.S. 44:35.

Courts are covered by the Public Records Act. See La. R.S. 44:1(A)(1), defining “public body” as including “any branch . . . of state . . . government,” and article 2, § 1 of the Louisiana Constitution: “The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.”

In addition to the Public Records Act applying to civil court records, article 251 of the Code of Civil Procedure states: “The clerk of court is the legal custodian of all of its records. . . . Except as otherwise provided by law, he shall permit any person to examine, copy, photograph, or make a memorandum of any of these records at any time during which the clerk’s office is required by law to be open.”

In Keko v. Lobrano, 497 So.2d 353 (La. App. 1986), the Court of Appeal held that, in light of the Public Records Act and article 251, “there is no power in the trial court to order an entire civil case record sealed from public inspection.”

Where closure of preliminary hearing was improper, denial of access to transcript of hearing was also improper. State v. Fletcher, 537 So.2d 805 (La. App. 1989).

In Copeland v. Copeland, 930 So.2d 940 (La. 2006), the District Court, on joint motion of the parties, issued an order sealing the entire record of the divorce proceedings of a wealthy and famous local businessman. On a writ application by a newspaper, the Supreme Court found “the trial court’s blanket order sealing the entire record in this case to be overbroad,” and vacated and remanded. The Supreme Court required a “specific showing that [the parties’] privacy interest outweigh the public’s constitutional right of access to the record” and further required that orders sealing records be “narrowly tailored to cause the least interference with the right of public access.” On remand, the District Court ordered almost all of the documents in the record sealed. The Supreme Court again granted a writ and ordered “the entire record unsealed, with redaction of the following information: (1) the name of the children’s school; and (2) the location of the family home.” Copeland v. Copeland, 966 So.2d 1040 (La. 2007).

Typically, such records are obtained simply by going to the clerk’s office (or the judge’s chambers) and asking for the record.

Such records, if possessed by the Clerk of Court, should be accessible through a Public Records request.

E. Trial records

There should be no different standards for access to trial records than for access to pre-trial records. See the “Pretrial motions and records” section above. Typically, such records are obtained simply by going to the clerk’s office (or the judge’s chambers) and asking for the record.

F. Settlement records

G. Post-trial records

There should be no different standards for access to post-trial records than for access to pre-trial records. See the “Pretrial motions and records” section above. Typically, such records are obtained simply by going to the clerk’s office (or the judge’s chambers) and asking for the record.

H. Appellate records

There should be no different standards for access to appellate records than for access to pretrial records. See the “pretrial motions and records” section above. Typically, such records are obtained simply by going to the clerk’s office and asking for the record.

Supreme Court Rule V, § 5, addresses sealed documents: “When a Motion to Seal is filed, the motion and the documents, subject of motion, will be filed under seal and will remain under seal until the court takes action on the motion. If the motion is granted, the order will become public and the motion and documents will remain under seal. If the motion is denied, the motion and documents will be available to the public unless the court order allows the filing party to retrieve the motion and documents. Motions and documents filed under seal will only be viewable by authorized court personnel unless otherwise indicated in the order to seal.”

I. Other civil court records issues

The Public Records Act applies to records “regardless of physical form or characteristics, including information contained in electronic data processing equipment.” La. R.S. 44:1(A)(2)(a).

Electronic access to records varies from judicial district to judicial district. Some courts, typically in rural areas, do not even have websites. Clerk’s offices in urban areas, such as those in Shreveport, Baton Rouge, Covington and Gretna, do have websites with access to court records. Typically, minimal or no information is available for free, and full access, including images of documents, is available only with a paid subscription. The clerk’s website for the Civil District Court for New Orleans does not provide access to documents.

Administrative records of courts are subject to the Public Records Act. See Henderson v. Bigelow, 982 So.2d 941, 947 (La. App. 2008) (records “relative to the expenditure and disbursement of public monies from the” judicial expense funds of courts are public records).

Persons inspecting public records are allowed to use hand-held scanners to make copies. First Commerce Title Co., Inc. v. Martin, 887 So.2d 716 (La. App. 2004). Because of the loss of revenue from providing copies of records, there is considerable resistance to the use of hand-held scanners.

A. Access to voir dire

B. Juror identities, questionnaires and other records

In the Louisiana federal courts, the “decision to empanel an anonymous jury is within the discretion of the district court.” Factors that may support use of an anonymous jury include: “(1) the defendants’ involvement in organized crime; (2) the defendants’ participation in a group with the capacity to harm jurors; (3) the defendants’ past attempts to interfere with the judicial process or witnesses; (4) the potential that, if convicted, the defendants will suffer a lengthy incarceration and substantial monetary penalties; and (5) extensive publicity that could enhance the possibility that jurors’ names would become public and expose them to intimidation and harassment. United States v. Edwards, 303 F.3d 606, 613 (5th Cir. 2002); United States v. Brown, 303 F.3d 582 (5th Cir. 2002).

C. Grand jury proceedings and records

Article 434 of the Louisiana Code of Criminal Procedure states: “Members of the grand jury, all other persons present at a grand jury meeting, and all persons having confidential access to information concerning grand jury proceedings, shall keep secret the testimony of witnesses and all other matters occurring at, or directly connected with, a meeting of the grand jury.”
Article 434 of the Louisiana Code of Criminal Procedure states: “Members of the grand jury, all other persons present at a grand jury meeting, and all persons having confidential access to information concerning grand jury proceedings, shall keep secret the testimony of witnesses and all other matters occurring at, or directly connected with, a meeting of the grand jury.”

C. Other proceedings involving minors

Most other proceedings involving minors in the juvenile courts are confidential. Article 407 of the Louisiana Children’s Code states: “With the exceptions of delinquency proceedings . . . child support proceedings, traffic violations . . . and misdemeanor trials of adults . . . proceedings before the juvenile court shall not be public.”

Divorce and custody proceedings in the district courts are treated the same as other civil cases. See the “Access to Civil Proceedings” and “Access to Civil Records” sections above.

In Copeland v. Copeland, 930 So.2d 940 (La. 2006), the District Court, on joint motion of the parties, issued an order sealing the entire record of the divorce proceedings of a wealthy and famous local businessman. The District Court denied a newspaper’s motion to intervene to challenge the sealing order. The Court of Appeal denied the newspaper’s writ application. The Supreme Court then granted a writ, found “the trial court’s blanket order sealing the entire record in this case to be overbroad,” and vacated and remanded. The Supreme Court required a “specific showing that [the parties’] privacy interest outweigh the public’s constitutional right of access to the record” and further required that orders sealing records be “narrowly tailored to cause the least interference with the right of public access.” On remand, the District Court ordered almost all of the documents in the record sealed. The Court of Appeal denied a new writ application, and the Supreme Court again granted a writ. This time, the Supreme Court ordered the entire record unsealed, with redaction of only the name of the children’s school and the location of the family home—the only information that “would imperil the safety of the [parties’] children.” Copeland v. Copeland, 966 So.2d 1040 (La. 2007).

D. Prohibitions on photographing or identifying juveniles

E. Minor testimony in non-juvenile courts

In State v. Fletcher, 537 So.2d 805 (La. App. 1989), the Court of Appeal held that, to justify closing a hearing involving sexual molestation of a minor, “the State must present evidence and demonstrate, and the court must find, that there is a ‘substantial probability’ that the minor victim of sexual conduct will suffer either or both physical and psychological detriment or damage from testifying in open court before the press and the public . . . [and] that reasonable alternatives to closure would not adequately protect against incremental injury to the minor victim.”

In an aggravated rape case, the court cleared the courtroom of spectators, but allowed the news media to remain, when the victims, the young stepdaughters of the defendant, were testifying. The Court of Appeal concluded that this “did not violate the defendant’s constitutional right to a public trial since [the court] did not exclude the media and other essential parties.” State v. Loyden, 899 So.2d 166 (La. App. 2005).

B. Probate

C. Competency and commitment proceedings

Articles 389–399 of the Louisiana Civil Code provide for the “interdiction” of a person “who due to an infirmity, is unable consistently to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means.” The procedure for interdiction is set forth in articles 4541-4556 of the Louisiana Code of Civil Procedure. Interdiction hearings “may be closed for good cause.” La. C.C.P. art. 4547.
The Louisiana Revised Statutes also provide for involuntary judicial commitment if “a person [who] is suffering from mental illness which contributes or causes that person to be a danger to himself or others or to be gravely disabled, or is suffering from substance abuse which contributes or causes that person to be a danger to himself or others or to be gravely disabled.” La. R.S. 28:54(A). Commitment hearings should be open under the Open Courts provision of the Louisiana Constitution. The commitment law, however, allows the hearing to take place at a treatment facility where a person may be confined. La. R.S. 28:55(A). As a practical matter, it is unlikely that a hearing held at such a facility would be open to the public.

D. Attorney and judicial discipline

Judiciary Commission pleadings that are filed with the Supreme Court as part of the judicial discipline process are subject to the Public Records Act. La. R.S. 44:10. This is the case even where only minimal discipline (censure) has been recommended. In In re John Doe, 679 So.2d 900 (La. 1996). The records of the Judiciary Commission itself are exempt from the Public Records Act. La. R.S. 44:10.

In In re Warner, 21 So.3d 218 (La. 2009), the Louisiana Supreme Court held the confidentiality rule for attorney disciplinary proceedings to be an unconstitutional content-based restriction of speech that violated the First Amendment of the United States Constitution.

Bar exam records are a special case. Bester v. La. Supreme Court Comm. on Bar Admissions, 779 So.2d 715 (La. 2001), rejected a plaintiff’s public records request for her failed bar examination test and the grading guidelines prepared by the Bar Committee. However, the Court, acting sua sponte, also adopted a rule allowing applicants to view their failed exams and model answers.

E. Immigration proceedings

F. Other proceedings

X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

Standing to challenge gag orders is not usually an issue in Louisiana. The news media typically file a motion to intervene. The Courts have given full consideration to motions by the news media for access even without granting intervention, however, and have allowed intervention in criminal cases even though there is no express authority to do so.

State v. Lee, 787 So.2d 1020, 1037 (La. App. 2001), found standing for the news media and overturned a gag order prohibiting parties to proceedings from making any “extrajudicial statement relating to this proceeding.”

A Louisiana Court of Appeal approved a District Court’s order that closed a preliminary hearing, sealed the court record, and placed a gag order on the trial participants in a murder case where the victim was an 18-month old child. The news media filed a writ application (equivalent to an interlocutory appeal) from the District Court’s order; a 2-1 majority of the Court of Appeal panel stated merely: “Writ denied. We find no error in the trial court’s ruling.” There was a vigorous dissent by Judge Sylvia Cooks, correctly stating that the District Court had based its decision on a “reasonable probability” of prejudice to fair trial rights, rather than the “substantial probability” standard of Press-Enterprise II and also relying on the Louisiana constitutional provisions discussed herein.

B. Gag orders on the press

Gag orders are rare in Louisiana courts. The authors are aware of only one case concerning a gag order directed to the news media, rather than to the trial participants. In State v. Spillers, 813 So.2d 1184 (La. App. 2002), the District Court initially issued an order prohibiting publication of the defendant’s name and address “in any newspaper or public writing in Lafayette and St. Martin Parish.” The following day, the Court amended the order to prohibit only publication of the defendant’s address. The order stated that the defendant’s address was not to be disclosed because she had obtained a protective order in another pending case and the Court sought to prevent her being subject to “any type of foreseeable harm or violence.” A local newspaper filed a motion for reconsideration of the Court’s order. After the District Court denied the motion, the newspaper filed a writ application with the Court of Appeal; when that was denied, the newspaper filed with the Supreme Court, which granted the writ, and remanded the case to the Court of Appeal “for briefing, argument and opinion.” The Court of Appeal reversed the District Court’s order. It reached this decision, however, because the protective order from the other case was not in the record of this case. As such, the Court of Appeal did not know “if a protective order or a temporary restraining order was issued; the type or severity of Ms. Spillers’ allegations against the named defendant; when the order was issued or how long it was to remain in effect; whether it was contested or was issued by consent of the parties; where the named defendant lived at the time; whether Ms. Spillers had knowledge of his whereabouts; whether he had disobeyed the protective order; or why Ms. Spillers believed publication of her address in the newspaper would place her in harm’s way.” Thus, the Court could not ascertain “the likelihood of harm to Ms. Spillers in the event her address is published in the newspaper.” It is unknown whether the newspaper published the defendant’s address.

In State v. Rittiner, 341 So.2d 307, 314 (La. 1977), the Supreme Court stated that the District Court had “properly denied” the defendant’s motion to “impose a ‘gag order’ restricting the two newspapers represented at the [pretrial] hearing from publishing the facts brought out at the hearing.”

C. Gag orders on participants

State v. Lee, 787 So.2d 1020, 1037 (La. App. 2001), overturned a gag order prohibiting parties to proceedings from masking any “extrajudicial statement relating to this proceeding.” The Court of Appeal held the gag order to be a prior restraint, justifiable only on “an imminent, not merely likely, threat to the administration of justice.”

Nonetheless, a Louisiana Court of Appeal approved a district court’s order that closed a preliminary hearing, sealed the court record, and placed a gag order on the trial participants in a murder case where the victim was an 18-month old child. The news media filed a writ application (equivalent to an interlocutory appeal) from the district court’s order; a 2-1 majority of the Court of Appeal panel stated merely: “Writ denied. We find no error in the trial court’s ruling.” There was a vigorous dissent by Judge Sylvia Cooks, correctly stating that the district court had based its decision on a “reasonable” probability” of prejudice to fair trial rights, rather than the “substantial probability” standard of Press-Enterprise II and also relying on the Louisiana constitutional provisions discussed herein.

In Sanders v. Gore, 676 So.2d 866 (La. App. 1996), a gag order was issued sua sponte by a court in an action by a former client against an attorney for breach of a promise to marry (which was actually a promise to get a divorce and then marry plaintiff). The gag order was intended to be only temporary pending a hearing but was never withdrawn when the case was dismissed. The clear lack of merit in the case plus the obvious sensationalism of the story lead the Court of Appeal to affirm the district court’s order.

D. Interviewing judges

Canon 3(A)(8) of the Canons of Judicial Conduct states: “A judge shall not, while a proceeding is pending in any Louisiana state court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness . . . . This subsection does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court.”

XI. Other issues

A. Interests often cited in opposing a presumption of access

The Public Records Act exempts from disclosure “records containing the identity of an undercover police officer or records which would tend to reveal the identity of an undercover police officer.” La. R.S. 44:3(A)(5).

Under certain circumstances, “proprietary or trade secret information” may be exempt from disclosure under the Public Records Act. See La. R.S. 44:3.2 (exempting certain “proprietary or trade secret information” from Public Records Act); see also La. R.S. 44:4 (same).

In State v. Fletcher, 537 So.2d 805 (La. App. 1989), the Court of Appeal held that, to justify closing a hearing involving sexual molestation of a minor, “the State must present evidence and demonstrate, and the court must find, that there is a ‘substantial probability’ that the minor victim of sexual conduct will suffer either or both physical and psychological detriment or damage from testifying in open court before the press and the public . . . [and] that reasonable alternatives to closure would not adequately protect against incremental injury to the minor victim.”

In an aggravated rape case, the court cleared the courtroom of spectators, but allowed the news media to remain, when the victims, the young stepdaughters of the defendant, were testifying. The Court of Appeal concluded that this “did not violate the defendant’s constitutional right to a public trial since [the court] did not exclude the media and other essential parties.” State v. Loyden, 899 So.2d 166 (La. App. 2005).

In Copeland v. Copeland, 930 So.2d 940, 941 (La. 2006), the Louisiana Supreme Court stated: “Although there may be some justification for sealing certain sensitive evidence in a proceeding, the parties have the burden of making a specific showing that their privacy interests outweigh the public’s constitutional right of access to the record. The trial court, should it grant such relief, must ensure that its order is narrowly tailored to cause the least interference possible with the right of public access.”

Then, in Copeland v. Copeland, 966 So.2d 1040 (La. 2007), the Court allowed the sealing only of information that “would imperil the safety of the” children who were the subject of the custody battle. Only the name of the children’s school and the location of the family home, and not the “general information about custody and financial arrangements regarding the children” were allowed to remain sealed.

In Plaquemines Par. Comm’n Council v. Delta Dev. Co., 472 So.2d 560, 566 (La. 1985), the Court balanced “the rights of the press to publish and of the public to know” against the “privacy interests of the defendants” and concluded that those defendants who had not been public officials had greater privacy interests than those defendants who were or had been public officials.

B. Cameras and other technology in the courtroom

The Louisiana courts are generally hostile to cameras and broadcasts of judicial proceedings. The rules concerning cameras in courtrooms are found, oddly, in the Canons of Judicial Conduct. Canon 3(A)(9) states: “Except as herein provided a judge should prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto at least during sessions of court or recesses between sessions.” In the district courts, “broadcasting, televising, recording, or taking photographs” are prohibited.

In the district courts, “broadcasting, televising, recording, or taking photographs” are prohibited. Canons of Judicial Conduct, Canon 3(A)(9). Exceptions are allowed only in three limited circumstances: (1) when done “for the presentation of evidence, for the perpetuation of a record for the court or for counsel, or for other purposes of judicial administration”; (2) for “investitive or ceremonial proceedings”; and, (3) with the consent of the court and the parties, where “the reproduction will be exhibited only for instructional purposes in educational institutions” and only “after the proceeding has been concluded and all direct appeals have been exhausted.”
Appellate courts “may permit broadcasting, televising, recording, and taking photographs of public judicial proceedings in the courtrooms of appellate courts.” Presiding appellate judges who authorize coverage are directed to exercise their authority to “(a) control the conduct of proceedings before the court, (b) ensure decorum and prevent distractions, and (c) ensure the fair administration of justice in the pending cause.”

A rather extensive Appendix to Canon 3 provides “Guidelines for Extended Media Coverage of Proceedings in Appellate Courtrooms.” In sum, the media (defined as “legitimate news gathering and reporting agencies and their representatives”) must give 20-days written notice to the clerk of the court; the consent of the parties is not required, although the parties may file objections at least 10 days prior to the event; the Court may prohibit or limit coverage, with or without objection by a party; and, most importantly, the “decision of the presiding judge on any question of coverage shall be final and shall not be subject to review by any other court.” If coverage is allowed, there are detailed rules in the Appendix governing the mechanics of the coverage, including limits on the number of cameras, placement of cameras, lighting, etc. Coverage is very rarely, if ever, allowed.

In addition, the Appendix to Canon 3 limits the use of footage as follows: “Film, videotape, photographs, and audio reproduction shall not be used for commercial or political advertising purposes. Such use of these materials will be regarded as an unlawful interference with the judicial process.”

Canon 3 of the Canons of Judicial Conduct, which governs the limited authorization for cameras and broadcasts of judicial proceedings, was last amended in 1993 and, thus, does not directly address webcasting, liveblogging, or tweeting. It is expected that the same rules would apply to webcasts as those discussed above in regards to cameras and broadcasts. Of particular note in the webcast context is that only the media are allowed to request to cover a judicial proceeding, and “media” is defined as “legitimate news gathering and reporting agencies and their representatives.” As an anecdotal matter, many judges do not allow court spectators to read newspapers or books while court is in session, but note-taking is typically allowed. A person typing on his keyboard or cellphone would be well-advised to do so as inconspicuously as possible. And, by all means, make certain that the cellphone ringer is silenced.

C. Tips for covering courts in the jurisdiction

The Louisiana Supreme Court is composed of seven justices elected from districts for 10-year terms. The Supreme Court has appellate jurisdiction in only two categories of cases: (1) cases in which a law or ordinance has been declared unconstitutional; and (2) cases where the death penalty has been imposed. The Court has exclusive original jurisdiction of disciplinary proceedings against lawyers, recommendations of the judiciary commission for discipline of judges, and fact questions affecting its own appellate jurisdiction. The Court has supervisory jurisdiction over all lower courts, and most of the Court’s docket consists of cases heard by writ applications under this discretionary jurisdiction.

There are five Courts of Appeal (not “Appeals”). The 1st Circuit, located in Baton Rouge, hears cases from 16 of Louisiana’s 64 parishes in the southeastern part of the state; the 2nd Circuit, located in Shreveport, hears appeals from 20 parishes in the northern part of the state; the 3rd Circuit, located in Lake Charles, hears appeals from 21 parishes in the southwestern part of the state; the 4th Circuit, located in New Orleans, hears appeals from New Orleans and the two southeastern-most parishes; and the 5th Circuit, located in Gretna, hears appeals from four parishes in the southeastern part of the state, including Jefferson Parish, the largest suburb of New Orleans. Judges are elected from districts or at-large within their circuits for 10-year terms.

The Courts of Appeal have appellate jurisdiction over all civil matters, all matters appealed from family and juvenile courts, and all criminal cases triable by a jury which arise within their circuits, except for those cases appealable directly to the Supreme Court or to the district courts. As a practical matter, this means that the Courts of Appeal hear most of the civil and criminal appeals in Louisiana. The Courts of Appeal also have discretionary supervisory jurisdiction over all court within their circuits. This jurisdiction is exercised through the writ application process.

The District Court is Louisiana’s trial court of general jurisdiction. There are 40 judicial districts in Louisiana, containing from one to three parishes each, as well as a district comprising Orleans Parish. There is a district court domiciled at the parish seat of each of the 63 parishes outside of Orleans Parish. For example, in districts comprised of more than one parish, each parish has a separate court with its own clerk and separate docket but served by the judge or judges for the judicial district. In Orleans, the district court is divided into civil and criminal district courts. All district judges are elected to six-year terms.

In general, district courts have jurisdiction over all matters within their territorial limits. Exceptions occur in Orleans, and in the 1st, 19th, and 24th judicial districts, where family and juvenile courts have exclusive jurisdiction over those types of cases. Further, in Orleans Parish, violations of municipal ordinances are tried by the municipal and traffic courts. There are also trial courts of limited jurisdiction, such as city court, parish court, municipal and traffic in New Orleans, and justices of the peace.

This page on the Louisiana Supreme Court’s website provides addresses and telephone numbers for all clerks of court as well as links to those clerk’s offices that have websites: http://www.lasc.org/links.asp

The “Louisiana Legal Directory,” an annual publication of the Louisiana State Bar Association, is a useful resource for persons dealing regularly with the Courts (or with government generally). The majority of the book comprises listings and information about Louisiana attorneys; the “yellow pages” section, however, contains information about each court in the state, including addresses, telephone numbers, website addresses and names of the individuals holding positions such as judge, clerk of court, judicial administrator, etc. The yellow pages section also contains similar information on the legislative and executive branches of state government and on all three branches of the federal government.

Transcripts are obtained by contacting the court reporter and asking for a transcript. Costs will vary and are, for at least some courts, set by statute. The law relating to court reporters can be found at La. R.S. 13:961 et seq, and 13:1271 et seq.

Some courts purport to prohibit cellphones entirely, but as a practical matter, the rule is that cellphones had best not be heard to ring or buzz. Eating or drinking is generally prohibited. Reading and writing is generally allowed.

This page on the Louisiana Supreme Court’s website provides links to maps showing the geographical boundaries of the circuit courts of appeal and of the district courts, and the electoral boundaries of the supreme court districts: http://www.lasc.org/about_the_court/maps_of_jd.asp